Lamb v. Groce

382 S.E.2d 234 (1989)

95 N.C. App. 220

Dan LAMB, Gilbert Miller, and wife, Mae Miller v. Chelsie GROCE, Paul Groce, and Randy Groce.

No. 8823DC1378.

Court of Appeals of North Carolina.

August 15, 1989.

*235 Max F. Ferree, Wilkesboro, for plaintiffs-appellees.

Robert P. Laney, Wilkesboro, for defendants-appellants.

ORR, Judge.

Defendants assign as error the trial court's granting of Correll's motion to withdraw and its refusal to allow a continuance so that defendants could obtain substitute counsel.

An attorney may withdraw from an action after making an appearance if there is (1) justifiable cause, (2) reasonable notice to his clients, and (3) permission of the court. Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965); Williams and Michael *236 v. Kennamer, 71 N.C.App. 215, 321 S.E.2d 514 (1984). Generally, clients' failure to pay or secure payment of proper fees upon reasonable demand is justifiable cause for an attorney's withdrawal. Smith, supra.; Gosnell v. Hilliard, 205 N.C. 297, 171 S.E. 52 (1933). Prior notice which is specific and reasonable is also required. Williams and Michael, supra. In this case, defendants had two weeks notice that Correll could not represent them at trial without payment. We therefore hold the requirements for withdrawal were fully met and the trial court did not err in allowing defendants' attorney to withdraw.

As for the trial court's refusal to grant a continuance, the general rule is that "an attorney's withdrawal on the eve of the trial of a civil case is not ipso facto grounds for a continuance." Shankle v. Shankle, 289 N.C. 473, 484, 223 S.E.2d 380, 387 (1976). Such a decision is instead within the trial court's discretion. Id. This rule presupposes that the attorney has given sufficient prior notice of his intent to withdraw. Williams and Michael, supra. If not, the trial court must either grant a reasonable continuance or deny the attorney's motion to withdraw. Id. In this case, sufficient notice of Correll's intent to withdraw was given; therefore, the trial court had discretion to grant or deny a motion for a continuance. We hold the trial court did not abuse its discretion in this case. Defendants' arguments are without merit.

For these reasons, in the District Court we find no error.

No error.

JOHNSON and EAGLES, JJ., concur.